Delhi High Court
Tigers Worldwide Pvt Ltd vs Mal Cargo Pvt Ltd on 17 July, 2018
$~CP-38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17.07.2018
+ CO.PET. 325/2013
TIGERS WORLDWIDE PVT LTD ..... Petitioner
Through Mr.Dharamvir Singh Gupta, Adv.
versus
MAL CARGO PVT LTD ..... Respondent
Through Mr.Joydeep, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This petition is filed under section 433(e) and 434(a) of the
Companies Act, 1956 for winding up of the respondent company. The case
of the petitioner is that respondent company had business dealings with the
petitioner. The petitioner company had granted credit facility of Rs.2 lacs for
facilitating its business transactions on 15 days‟ credit basis to the
respondent company. The petitioners raised invoices for the trade items
supplied. It has been pointed out that total dues payable to the petitioner is
Rs.31,65,721/-. These amounts are claimed based on running accounts and
invoices which have been raised on the respondent.
A part of the dues of the petitioner are based on cheques which were
tendered by the respondent. In all 15 cheques were tendered by the
respondent. Other than two cheques all the other cheques were returned
unpaid. The value of these cheques is valued at Rs.13,58,000/-.
2. I have heard the submissions of learned counsel for the parties.
Co.Pet.325/2013 Page 1
Learned counsel for the respondent has argued that the claims of the
petitioner are time barred as invoices pertain to the year 2008. Hence, he
pleads that the entire claim is time barred.
3. Learned counsel for the petitioner has pointed out that on 24.8.2011 a
sum of Rs.50,000/ was paid to the petitioner by the respondent. He relies
upon section 19 of the Limitation Act to submit that the present petition
cannot be said to be barred by limitation. There are two different
components of the claim of the petitioner. First is a claim of Rs.31,65,721/-
which is based on the invoices raised by the petitioner on the respondent for
items supplied.. This figure is downsized to Rs.13,58,000/- and is claimed
based on cheques which were tendered by the respondent for which
proceedings under section 138 of the N.I. Act are also pending.
4. It is quite clear that the overall claim of the petitioner is for
Rs.31,65,721/-. The particulars and details are given in Annexure „H‟ to the
petition. Out of this amount the petitioner has received cheques of
Rs.13,58,000/- which when presented were returned back by the bankers of
the respondent. It follows that as far as the sum of Rs.13,58,000/- claimed
by the petitioner is concerned the same is duly supported by the cheques
which were issued by the respondent and which have been returned back
unpaid. In my opinion, the respondent unequivocally remain liable to pay
the said sum of Rs.13,58,000/- keeping in view that the cheques for the said
amount have been duly tendered to the petitioner.
5. However, as far as the defence raised by the respondents is concerned
of the plea of limitation reference may be had to section 19 of the Limitation
Act. The same reads as follows:-
Co.Pet.325/2013 Page 2
"19. Effect of payment on account of debt or of interest on
legacy.--Where payment on account of a debt or of interest on
a legacy is made before the expiration of the prescribed period
by the person liable to pay the debt or legacy or by his agent
duly authorised in this behalf, a fresh period of limitation shall
be computed from the time when the payment was made.
Provided that, save in the case of payment of interest made
before the 1st day of January, 1928, an acknowledgment of the
payment appears in the handwriting of, or in a writing signed
by, the person making the payment."
6. Hence, where payment on account of a debt is made before expiry of
the prescribed period of limitation a fresh period of limitation be computed.
In the present case, the admitted fact is that the respondent has paid a sum of
Rs.50,000/- on account of pending dues on 24th August 2011. This is clear
from the statement of account which has been filed by the petitioner
alongwith the petition and which is marked as Annexure C. This payment
has not been disputed. This payment would extend the period of limitation.
The present winding up petition has been filed in 2013.
7. In view of the above, it becomes manifest that the sum of
Rs.13,58,000/- clearly remains unpaid. The respondent has failed to raise
any bona fide defence for non-payment of the said dues of the petitioner.
8. In my opinion, this is a fit case for admitting the petition and
appointing the OL as the Provisional Liquidator. Accordingly, the petition is
admitted and the Official Liquidator attached to this Court is appointed as
the Provisional Liquidator. He is directed to take over all the assets, books of
accounts and records of the respondent-company forthwith. The citations be
published in the Delhi editions of the newspapers 'Statesman' (English) and
'Veer Arjun' (Hindi), as well as in the Delhi Gazette, at least 14 days prior
Co.Pet.325/2013 Page 3
to the next date of hearing. The cost of publication is to be borne by the
petitioner who shall deposit a sum Rs.75,000/- with the Official Liquidator
within 2 weeks, subject to any further amounts that may be called for by the
liquidator for this purpose, if required. The Official Liquidator shall also
endeavour to prepare a complete inventory of all the assets of the
respondent-company when the same are taken over; and the premises in
which they are kept shall be sealed by him. At the same time, he may also
seek the assistance of a valuer to value all assets to facilitate the process of
winding up. It will also be open to the Official Liquidator to seek police help
in the discharge of his duties, if he considers it appropriate to do so. The
Official Liquidator to take all further steps that may be necessary in this
regard to protect the premises and assets of the respondent-company.
9. However, the above order appointing the OL as the Provisional
Liquidator is deferred for a period of six weeks from today. In case the
aforesaid payment is made by the respondent to the petitioner the aforesaid
winding up orders shall not take effect. Needless to add that in case this
payment of Rs.13,58,000/- is made by the respondent the petitioner shall
withdraw the petition filed under section 138 of the N.I.Act.
10. List on 11.9.2018.
JAYANT NATH, J
JULY 17, 2018
n
Co.Pet.325/2013 Page 4
